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African Human Rights Case Law Analyser United Nations A/HRC/36/27 General Assembly Distr.: General 4 July 2017 Original: English Human Rights Council Thirty-sixth session 11-29 September 2017 Agenda items 2 and 3 Annual report of the United Nations High Commissioner for Human Rights and reports of the Office of the High Commissioner and the Secretary-General Promotion and protection of all human rights, civil, political, economic, social and cultural rights, including the right to development High-level panel discussion on the question of the death penalty Report of the United Nations High Commissioner for Human Rights Summary The present report is submitted pursuant to Human Rights Council resolution 30/5. It provides a summary of the high-level discussion on the question of the death penalty held on 1 March 2017 at the thirty-fourth session of the Council. The objective of the panel discussion was to continue the exchange of views on the question of the death penalty and to address violations related to the use of the death penalty, in particular with respect to the prohibition of torture and other cruel, inhuman or degrading treatment or punishment. GE.17-11122(E) A/HRC/36/27 I. Introduction 1. Pursuant to its resolution 30/5, the Human Rights Council held its biennial high- level panel discussion on the question of the death penalty on 1 March 2017, at its thirty- fourth session. The panel was chaired by the President of the Human Rights Council, opened by the United Nations High Commissioner for Human Rights and the Minister of State for European Affairs of France, and moderated by Professor of Social History at the University of the West Indies Verene A. Shepherd. The panellists were the former President of Tunisia (2011-2014), Moncef Marzouki; the Chair of the Kenya National Commission on Human Rights, Kagwiria Mbogori; the representative of Thailand to the Association of Southeast Asian Nations (ASEAN) Intergovernmental Commission on Human Rights, Seree Nonthasoot; and the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment, Nils Melzer.1 II. Opening remarks and statements 2. In his introductory remarks, the President of the Human Rights Council pointed out that, in its resolution 30/5, the Council had requested the organization of the panel discussion and decided that it would address violations related to the use of the death penalty, in particular with respect to the prohibition of torture and other cruel, inhuman or degrading treatment or punishment. 3. The United Nations High Commissioner for Human Rights stated that capital punishment raised serious issues in relation to human dignity and human rights, including the right to life and the prohibition of torture and other cruel, inhuman or degrading treatment or punishment. 2 He recalled that the Supreme Court of Canada and the constitutional courts of Albania, Hungary, Lithuania, South Africa and Ukraine had all considered that the death penalty violated that prohibition. International and national bodies had concluded that several methods of execution were likely to violate the prohibition of torture because of the pain and suffering they often inflicted on the convicted person. Accordingly, it was increasingly difficult for a State to impose the death penalty without violating international human rights law. He highlighted that the “death row phenomenon” — a long and highly stressful period that most individuals endure while waiting for years, even decades, frequently in isolation, for an uncertain outcome — had been found to constitute torture or other cruel, inhuman or degrading treatment or punishment by the Human Rights Committee and other international, regional and domestic bodies, including the Supreme Court of California, in the United States of America. He also recalled that the former Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment had referred to the existence of an evolving standard according to which the death penalty constituted torture or other cruel, inhuman or degrading treatment or punishment and had recommended that the Human Rights Council should request a comprehensive legal study to be conducted on the emergence of a customary norm prohibiting the use of the death penalty under all circumstances (see A/67/279, paras. 53-64 and 79). 4. The High Commissioner noted that almost 10 years had passed since the General Assembly had adopted its resolution 62/149, in which it had first called upon States to establish a moratorium on executions with a view to abolishing the death penalty. During that decade, global resistance to capital punishment had increased, to the point where three quarters of all countries had either abolished the death penalty or did not practice it. There was cause for concern, however, as the number of executions in some States had increased and as some States where a moratorium had been in place for many years had recently 1 The webcast is available at http://webtv.un.org/search/panel-discussion-on-death-penalty-9th- meeting-34th-regular-session-human-rights-council/5343577825001?term=death penalty. 2 The opening statement of the High Commissioner is available at www.ohchr.org/en/NewsEvents/Pages/DisplayNews.aspx?NewsID=21258&LangID=E. 2 A/HRC/36/27 resumed executions. Persons sentenced to death and their family members had inflicted on them severe and unjustifiable mental and physical suffering, including as a result of inadequate information about the timing of executions, the failure to return the body to families for burial and a lack of information about the location of the burial. Referring to the Guiding Principles on Business and Human Rights: Implementing the United Nations “Protect, Respect and remedy” Framework, the High Commissioner commended the steps taken by pharmaceutical companies to prevent prison authorities from purchasing medication for use in lethal injections. Use of the death penalty should end, especially since it was applied in a manner that was capricious and frequently discriminatory and failed to demonstrate any deterrent effect beyond that of other punishments. 5. In his opening remarks, the Minister of State for European Affairs of France noted that the death penalty was being applied in over 20 countries and that there had been a record number of executions over the previous two years, following breaks in moratoriums and calls for the reintroduction of the death penalty. Some were trying to justify the reintroduction of capital punishment by invoking security concerns, such as terrorism or drug trafficking, despite the fact that the death penalty had no deterrent effect and was not a guarantee of security; moreover, renouncing capital punishment did not preclude a firm response to terrorism. The Minister concurred with the High Commissioner in highlighting that the use of the death penalty led to violations of the human rights of those convicted and of their relatives, and added that this had been mentioned in the reports of the Secretary- General and affirmed by the Human Rights Council. The death penalty was inhuman, unjust and ineffective. Hopefully, the panel discussion would encourage the Human Rights Council to take action on the subject. Abolishing the death penalty required the participation of many actors. The Minister paid tribute to the work carried out in that regard by representatives of civil society, journalists, human rights defenders and parliamentarians. 6. While international law did not explicitly equate the death penalty with torture, it did view it as incompatible with the right to life. Whatever the methods used and whatever the circumstances in which the executions were carried out, the death penalty always led to the intense physical and psychological suffering of those convicted and their relatives. The use of the death penalty did not respect human dignity and was undeniably cruel, inhuman or degrading treatment, a view already expressed by the European Court of Human Rights. The fight against the death penalty was a political struggle and a question of principle. Respect for human rights motivated France to fight for the universal abolition of the death penalty and the absolute prohibition of torture and other cruel, inhuman or degrading treatment or punishment. The fact that two thirds of States had renounced capital punishment (in law or in practice), compared to 16 States 40 years ago, indicated that, despite recent setbacks, the trend was towards the abolition of the death penalty. Abolition initiatives have been launched in all regions and progress in Africa was particularly encouraging, confirming that the issue was one of principle, not culture. National judicial systems were urged to strengthen efforts to abolish the death penalty. III. Contribution of the panellists 7. In her introduction, the moderator of the panel reiterated that the trend was in the direction of abolition, as over 160 States had either abolished the death penalty, had imposed a de jure or de facto moratorium on the use of the death penalty, did not actually practise it or did not have anyone on death row. In the Commonwealth Caribbean, no one had been executed since 2008 and hardly any countries had issued death sentences. Jamaica had not issued a death sentence since 2010 and no one there was on death row. That was in marked contrast to the situation between the sixteenth and nineteenth centuries, when the brutality of colonialism included the indiscriminate use of capital punishment in the Caribbean region. The retention of the death
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